- "Public Official"
The terms "public official" and "person who has been selected to be a public official" are defined in section 201(a). "Public official" includes any garden-variety Federal employee, regardless of the branch of government involved, employees of the District of Columbia, Members of Congress, and Federal jurors. The breadth of the definition should be noted, for it includes any "person acting for or on behalf of the United States, or any department, agency, or branch of government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of government." 18 U.S.C. § 201(a)(1). The Supreme Court has liberally interpreted this language to include persons who are not Federal employees, but who have the power to allocate and expend Federal monies under grant programs. Dixson v. United States, 465 U.S. 482 (1984).
PRACTICE TIP: Even if the broad definition of "public official" under § 201 cannot be met, a charge under 18 U.S.C. § 666 may nonetheless be appropriate if the solicitor or intended recipient of the bribe is a person who acts as an agent of an organization that receives in one year $10,000 or more in Federal grant, loan, contract, or insurance funds.
- "Thing of Value"
The term "thing of value" is used throughout Title 18, and includes intangible as well as tangible things. See United States v. Girard, 601 F.2d 69, 71 (2d Cir.), cert. denied, 444 U.S. 871 (1979). It has been broadly construed to focus on the worth attached to the bribe by the defendant, rather than its commercial value. United States v. Williams, 704 F.2d 603, 622-23 (2d Cir.), cert. denied, 464 U.S. 1007 (1983).
- "Official Act"
"Official act" for the purposes of Section 201(b) and (c) is defined to mean:
"Any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit."
18 U.S.C. § 201(a)(3). In order for an act to fall within this definition, it need not be specified by statute, rule, or regulation; established practice within the department is sufficient to prove official action. United States v. Birdsall, 233 U.S. 223 (1914).
- Authority or Power to Do the Official Act
It is not essential to a bribery charge against a public official that he or she have the authority to make a final decision on an official matter. When the advice and recommendation of the public official would be influential, a violation of Section 201(b) may be established. United States v. Heffler, 402 F.2d 924 (3d Cir. 1968), cert. denied, 394 U.S. 946 (1969); Wilson v. United States, 230 F.2d 521 (4th Cir.), cert. denied, 351 U.S. 931 (1956); Krogmann v. United States, 225 F.2d 220 (6th Cir. 1955).
It is also possible in some circuits to convict either the giver or the taker of a bribe (or both) even if the public official does not have the power to bring about the result that prompted the bribe. It is sufficient as to a charge against the public official that the public official represented that the official act in question was within his or her power, United States v. Arroyo, 581 F.2d 649 (7th Cir. 1978), cert. denied, 439 U.S. 1069 (1979); or as to the giver of the bribe that the giver believed the recipient had the power to bring about the desired result. United States v. Hsieh Hui Mei Chen, 754 F.2d 817 (9th Cir.), cert. denied, 471 U.S. 1139 (1985); United States v. Gjieli, 717 F.2d 968 (6th Cir. 1983), cert. denied, 465 U.S. 1101 (1984). If, however, the public official has no authority at all to act in the matter and his or her acts in response to the payment of a bribe are unauthorized and illegal, it has been held that the "official act" component is lacking. Blunden v. United States, 169 F.2d 991 (6th Cir. 1948). Such a case could nonetheless be charged as an effort to induce a public official to commit a fraud on the United States or to do an act in violation of official duty. United States v. Gjieli, supra.
Under section 201(b), the offender must have acted "corruptly." This is, properly speaking, the intent element of the offense. The word "corruptly" simply means "with a bad or evil purpose." It is also frequently defined to mean the same thing as "willfully," and thus to connote "specific intent." See, e.g., 1 Devitt & Blackmar, Federal Jury Practice and Instructions, §§ 14.03, 14.06, 34.08. A number of cases speak of section 201(b) as a specific intent crime; however, this reference is sometimes not to "intent" in the strict sense of criminal intent or mens rea, but to the purpose or reason for the act - namely, intent to influence or be influenced. The statute is a little confusing in this respect, since it does speak of the briber-giver acting "with intent to influence." That phrase refers, however, to what the briber expects to accomplish, not to his level of "criminal intent." Accordingly, take care to specify this clearly when communicating with a court about "intent" in bribery/gratuity cases.
Section 201(c) lacks the word "corruptly" and has no corresponding specification of a particular level of criminal intent. Some courts seem to have taken the phrase "otherwise than as provided by law for the proper discharge of official duties" to be parallel to section 201(b)'s "corruptly," and therefore to be an intent provision. The Public Integrity Section does not believe this to be correct. The "otherwise than as provided by . . ." phrase simply ensures that authorized payments will be construed as illegal gratuities. Rather the intent requirement for section 201(c), lacking any other specification, is simply that the defendant acted "knowingly and purposefully" and not by mistake or inadvertence, as opposed to "corruptly" or willfully." United States v. Evans, 572 F.2d 455, 480-81 (5th Cir.), cert. denied, 439 U.S. 870 (1978).
- Purpose: Causal Connection Between Payment and Act
Section 201(b) requires that the offender have acted with the intent (as to the giver of a bribe) to influence or (as to the taker of a bribe) to be influenced. Thus, the bribery statute requires proof of an actual or intended quid pro quo: one thing given in exchange for another. It specifies a bargained-for exchange, like a contract. E.g., United States v. Strand, 574 F.2d 993 (9th Cir. 1978); United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974). This requirement can be met by proof of a pattern of payments and official acts flowing between the giver and the taker of bribes. See United States v. Campbell, 684 F.2d 141 (D.C. Cir. 1982).
This direct exchange of "quid pro quo" requirement is the factor that chiefly distinguishes bribery from the lesser offense, a gratuity violation. E.g., United States v. Hsieh Hui Mei Chen, supra. Under section 201(c), the thing of value must be given or received "for or because of any official act performed or to be performed" by the public official. This requirement under the gratuity statute has been interpreted not to require proof of a quid pro quo as for the bribery statute, but rather of a lesser connection between the payment and an official act. United States v. Niederberger, 580 F.2d 63 (3d Cir.), cert. denied, 439 U.S. 980 (1978); United States v. Alessio, 528 F.2d 1079 (9th Cir.), cert. denied, 426 U.S. 948 (1976); United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974). Indeed, under the most liberal interpretation of the gratuity statute, the link is really between the payment and the official position of the recipient. United States v. Evans, 572 F.2d 455 (5th Cir.), cert. denied, 439 U.S. 870 (1978). Under this interpretation, it is unnecessary to show that the payments were "earmarked for a particular matter then pending" before the public official and over which the public official had authority. Id. at 481. Thus, if the motivating factor for the payment is even "to keep [the public official] 'happy,'" id., or to "create a better working atmosphere" with a public official, the payment can form the basis of a gratuity charge. United States v. Standefer, 452 F. Supp. 1178, 1183 (W.D. Pa. 1978), aff'd, 610 F.2d 1076 (3d Cir. 1979), aff'd, 447 U.S. 10 (1980); United States v. Niederberger; United States v. Barash, 412 F.2d 26 (2d Cir.), cert. denied, 396 U.S. 832 (1969).
PRACTICE TIP: There must be some connection between the receipt of the thing of value and the official position of the public official. In United States v. Muntain, 610 F.2d 964 (D.C. Cir. 1979), the court held the proof insufficient to establish a gratuity charge when the defendant public official accepted commissions from a private company to steer business to that company. The official's efforts to profit from his contacts as a government official with potential customers of the company were held not to constitute a gratuity violation because these acts were "totally unrelated to his official duties." 610 F.2d at 970.
An aphorism sometimes used to sum up the distinction between a bribe and a gratuity is that a bribe says "please" and a gratuity says "thank you." Remember, though, that a gratuity can precede the official action that prompted it, as the "to be performed" language in the statute attests. Such pre-act "gratuities" are customarily made for a generalized purpose to "curry official favor" with the recipient. Another way of looking at it is that a bribe purchases a service (or at least is intended to do so) and is therefore bargained-for; a gratuity is more in the nature of a tip (hence the name) because it is not bargained-for.
This is easy to say, but not so easy to see. Suppose, for example, there is a contract proposal pending before a Government contracting officer, and the prospective contractor takes the contracting officer on an all-expense paid cruise the week before the contract is to be awarded. Assuming that the prospective contractor and the contracting officer do not otherwise know each other, this looks suspiciously like a bribe or a gratuity. But which? Absent direct evidence of an agreement between the prospective contractor and the contracting officer, the answer will probably depend on such factual circumstances as the following:
- Did the prospective contractor get the contract?
- Did the contracting officer have the power to decide who received the contract? If not, what role did the contracting officer play in making the decision?
- What is the value of the cruise?
- How much competition did the prospective contractor have?
- How qualified was the prospective contractor to get the contract? How did the contractor rank in relation to the competitors?
- How important financially or otherwise was the contract to the prospective contractor?
- How important was the cruise to the contracting officer?
- Are there contemporaneous admissions from either the contracting officer or the prospective contractor or both regarding the purpose of the cruise?
Absent good proof of incriminating admissions, or the lack of qualifications of the prospective contractor, or the essential nature of the contract to the business of the prospective contractor, this scenario will likely end up charged as a gratuity. However, the addition of one or more of the above facts may convince a jury that the intent of the donor was to influence official action, or that the intent of the donee was to be influenced, and thus sustain a bribery charge.
[cited in JM 9-85.101]